REPUBLIC vs. ATTORNEY-GENERAL, EX PARTE ABBEY [1993]DLCA4975

Date	1993-04-08
Suit No.	[1992 – 1993] 3 G B R 1077 – 1092 C.A
Citation No.	[1993]DLCA4975

AMUAH JA

BROBBEY JA

FORSTER JA

[1993]DLCA4975
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													<main id="main" class="content" style="min-height: 60rem" >REPUBLIC<o:p></o:p>vs.<o:p></o:p>ATTORNEY-GENERAL, EX
PARTE ABBEY<o:p></o:p>[COURT
OF APPEAL]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

[1992 – 1993] 3 G B R 1077 – 1092 C.A&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 8 APRIL 1993<o:p></o:p>

</div>CORAM:<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

AMUAH
JA, BROBBEY JA, FORSTER JA<o:p></o:p>

</div>AMUAH JA. <o:p></o:p>This
is an appeal against the ruling of the High Court, Sekondi dated 27 January
1992, for refusing to grant an order of certiorari to quash the conviction and
sentence imposed on the appellant in 1964. The brief facts of the case are as
follows: On 7 September 1964, the appellant was convicted on two charges
namely, attempted stealing and stealing of a cheque leaf of a customer of the
Bank of West Africa (now Standard Chartered Bank) by the Takoradi Circuit
Court, and sentenced on the first charge to twelve pounds or in default one
month imprisonment with hard labour, on the second charge to a day's
imprisonment and a fine of forty pounds or in default to two months
imprisonment with hard labour. The fines were paid. The facts on which the
prosecution relied to establish their case were not recorded and all attempts
to obtain this information from the police or court dockets failed because the
dockets could not be traced. The convictions stood against him; he did not
appeal and did not consider them to be of any consequence. In 1987 however, the
appellant was nominated elected and installed as the paramount chief of
Prampram. He then applied to the Government of the Republic of Ghana for
recognition but the government refused to accord him recognition. In the circumstance,
he applied to the High Court for an order of certiorari to bring up and quash
his conviction and the sentence imposed on him in Case No 1405/1964 entitled
The State versus Samuel Abbey.<o:p></o:p>This
application suffered a setback at the initial stages. For instance, it was
dismissed for not being brought within six months of the conviction. The order
made by the court extending the time within which the application could be made
was appealed against by the State and the application was struck out for want of
prosecution. When eventually those hurdles were removed, learned counsel for
the appellant, at the hearing of the motion, urged the court to quash the
convictions and sentences imposed on the appellant because section 171 of the
Criminal Procedure Code 1960 (Act 30) was not complied with. He stated, among
other grounds, that the facts given by the prosecution in support of their case
were not recorded by the circuit judge and stressed that even if the facts had
been recorded they would not have supported the charges. He cited Mosi v
Bagyina [1963] 1 GLR 337 and a host of authorities in support of his case.<o:p></o:p>For
a complete understanding of the applicant’s case, I reproduce a full text of
his affidavit in support of this motion paper:<o:p></o:p>“I, Samuel Abbey otherwise known as
Annortey Mensah Samuel Abbey of Prampram, make oath and say as follows:<o:p></o:p>1. I am Paramount Chief of Prampram
traditional area, having been duly nominated elected and installed in
accordance with the custom and usage of the said traditional area, in
succession to the late Nene Anorkwei II. My stool name or royal style and title
is Nene Agbo III.<o:p></o:p>2. In 1987 I was denied recognition by
the Government, which had refused to publish my particulars as paramount chief
in the Local Government Bulletin of the Gazette on the ground that I was some
time ago, convicted of stealing and sentenced accordingly.<o:p></o:p>3. It is perfectly true that I was
convicted and sentenced as alleged but I am advised and verily believe that my
said conviction which occurred in 1964 in the Circuit Court, Takoradi was wrong
in law and further or in the alternative that the relevant proceedings on the
day of my trial were null and void as being in breach of the Criminal Procedure
Code 1960 (Act 30).<o:p></o:p>4. With a view to taking legal action
to quash or otherwise set aside my said conviction and sentence, I have, upon
the advice and with the assistance of my solicitor, sent to Sekondi-Takoradi no
less than five times this year agents who have made diligent and expensive
search and enquiry at the circuit court, the police and the regional archives.
In addition my solicitor has caused urgent searches to be made at the National
Archives for the court or police docket on my case. All the said searches and
enquiries have proved in vain; neither the court docket nor the police docket
has been found from which relevant papers might be extracted and laid before
this honourable court.<o:p></o:p>5. There has been found, however, in
the circuit court Criminal Record Book the court notes of the short proceedings
at my trial on 7 September 1964 before His Honour Judge J S C Okai. I attach
hereto, marked AA1 a photocopy of the certified extract of the said proceedings
supplied by the registrar of the circuit court.<o:p></o:p><o:p>&nbsp;</o:p>6. To the best of my recollection,
knowledge, information and belief, the first count mentioned in the photocopy
extract was a charge of attempted stealing, and the second count was a charge
of stealing the cheque leaf of a customer of the Bank of West Africa, Takoradi
where I was in 1964 employed as an accountant.<o:p></o:p>7. The said customer had presented the
said cheque leaf filled up for the withdrawal of about £G60 and I endorsed it
for encashment, and passed it to the paying-out cashier in the paying-out cage.
The said cashier then discovered that there was a “stop order” written against
the ledger card of the said customer's account, and in accordance with normal
practice took the said cheque leaf to the expatriate manager for his
instruction whether or not to pay out the amount sought to be cashed by the
said customer.<o:p></o:p>8. The said manager, however,
immediately handed me over to the police on suspicion of deliberately endorsing
the said cheque leaf for encashment, and I was thereupon charged with the said
offences.<o:p></o:p>9. I was eventually persuaded by the
said manager (but not the police) to plead guilty to the said charges on the
ground that it was a small matter, no money had been lost, and that I was being
charged purely as a deterrent against further occurrences of hasty processing
of cheques, and that I would not lose my job in any event.<o:p></o:p>10. I therefore ultimately admitted
the offence, pleaded guilt</main>